ARULAN ISREAL Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the accused in Sessions Case No. 40 of 1953 on the file of the Temporary Additional Sessions Judge of Trivandrum. He was convicted of murder under S. 302 of the Indian Penal Code and sentenced to transportation for life.

(2.) THE case for the prosecution may be briefly stated thus: THE accused, P. W. 1 and P. W. 3 are the children of P. W. 8, Jaini Gracy. She was a widow, her husband having died about 31/2 years before the occurrence which gave rise to this case. P. W. 8 was residing at Samudayapattu Purayidom in parasala Pakuthi. THE accused, his younger brother P. W. 1, their sisters Rosali and Dasamma and two younger brothers were living with her. Some time after her husband's death, P. W. 8 began to have illicit connection with P. W. 11, ponnayyan also known as Pallan. Three or four days prior to the occurrence the accused and P. W. 1 had to stay one night at the house of their sister PW. 3 who was at that time ill. When they reached home in the morning the two sisters complained to the accused about the objectionable conduct of their mother with pallan during the previous night. THEreafter the accused was trying to verify the truth of the story and he lay in wait in their tapioca plantation. On the night previous to the occurrence he found them together. THEreupon he chastised his mother and she left the house at about midnight. She spent the rest of the night at the house of P. W. 12. She left for Kaliyakkavila Market the next morning and returned only at about noon. THE accused was brooding over the ignominy. Yet, he went for his normal work of a tree climber. He returned home at about 10 A. M. that day i. e. , 30. 11. 1951 and told his sisters and P. W. 1 of his intention to end his life on account of the shame brought on them by the disgraceful conduct of their widowed mother. He is said to have invited them to be killed by him before he ended his own life. THEy did not respond and then he took a chopper and killed his two sisters in the kitchen of their house. P. W. 1 saw the accused inflicting one blow with the chopper on Rosali and he ran away from the house making an out-cry. THE accused came back to the verandah with the bloodstained chopper and threatened to kill P. W. 2 who approached him on hearing the noise made by P. W. 1. P. W. 2 went back to the road and returned after some time with P. Ws. 6 and 7 and they managed to secure the accused to a pillar with a piece of rope. Though a crowd gathered there nobody bothered to inform the police but at about 4 p. m. a Police constable P. W. 10 happened to come that way. He arrested the accused and sent information to the Police station in pursuance to which his superior officers came and took the accused in custody. THE Inquest was conducted the next day and the accused was duly charged for the offence of murder of his two sisters. He was tried and found guilty by the Sessions Judge who sentenced him to transportation for life. This appeal was preferred by him through the prison authorities. Shri Rajamony, the advocate, who was engaged at State cost to defend him in this court and who argued the case very ably did not dispute the fact that the girls Rosali and dasamma died on 30. 11. 1951 as a result of the injuries mentioned in the post-mortem certificates Exts. E and F. THE fact of death stands proved by the inquest reports Exts. A and B also. THE point pressed by the learned Counsel for the appellant was that the accused was entitled to an acquittal as the direct evidence against him was too meagre to sustain the conviction and as the circumstantial evidence was not inconsistent with his innocence. THE only witness who is said to have witnessed the attack on the two girls is P. W. 1, one of the younger brothers of the accused and the deceased. P. W. 1 who was about 13 years old at the time he gave evidence in the lower court deposed that he saw the accused inflicting one cut on Rosali with the chopper, that on seeing this he ran away from the kitchen, that he heard the kitchen door being closed and also the sound of a number of cuts being inflicted and that sometime after this PW. 2 came there. He added that P. W. 2 came again with P. Ws. 6 and 7 and that they succeeded in securing the accused by tying him to a pillar of the house. He deposed about the events preceding the attack on the girls. His version was that the accused told them that he could not go out on account of the disgrace brought on all of them, that he was going to commit suicide and that if they were also willing to end their lives with him they were to kneel before him. Nobody replied or responded to the suggestion and the accused is then said to have taken the chopper and hacked the two sisters to death. THE question is whether a conviction can be based on the sole testimony of this witness. It was argued that the learned judge failed to record the questions put by him to this witness to elicit his competency to depose and the answers given by P. W. 1 to such questions and that this omission constituted serious irregularity. THE learned judge has made a note that as a result of questioning the witness he was satisfied that he could understand the questions put to him and that he was competent to give evidence. Though it may be desirable to make a record of such questions and answers, we are not prepared to hold that the failure to record the same is fatal. THE decision primarily rests with the trial judge. It has been held that the absence of such a preliminary enquiry is a mere irregularity and the fact that a court did not interrogate a child witness before his examination would not invalidate the trial. THE testimony of P. W. 1 cannot be discarded on this ground. Another point urged was that the Police took a signed statement from P. W. 1 at the time of the Inquest which was held the next day. This court has at least in two reported decisions pointed out that the statements given by witnesses to the officers holding the Inquest would fall within the purview of S. 162 of the Code of Criminal Procedure and that it was a mandatory provision of that section that such statements should not be got signed by the deponents. See Joseph v. State 1952 K. L. T. 216 = i. L. R. 1952 T. C. 261 and Vasu v. State (1953 K. L. T. 780 ). As observed by the learned Chief Justice in the latter decision, witnesses who give signed statements to the Police will not when afterwards examined at the enquiry or trial feel themselves free agents to give evidence. THE fact that the signature of P. W. 1 was taken by the Police is a circumstance to be taken into consideration in appraising the worth of his testimony. Certain other circumstances have also to be taken into account in this connection. THE inquest was held about 24 hours after the girls met with their end. THE Police constable came to the place at about 4 P. M. on 30. 11. 1951 and the superior officers came a few hours later. THEre was plenty of time to shape the version to be given at the time of Inquest. Various persons who figure as witnesses would have been possible suspects. P. W. 2 who came on the scene first was admittedly not on good terms with the accused and his family though he was the uncle of the accused. He stated that there was such estrangement even during the life-time of the accused's father. P. W. 8 the accused's mother had a violent quarrel with the accused the previous night when she is said to have sustained a few minor injuries at the accused's hands. According to the prosecution this quarrel was the result of a report given by the two girls to the accused about the clandestine nocturnal visits of their mother's paramour to his house and his giving some medicine to P. W. 8 in order to procure abortion so that traces of their illicit love could be made to disappear. P. W. 8 also must have had a grievance against her two daughters on this account. THEre was P. W. 11 who according to P. W. 8 had threatened to do violence to the accused for finding fault with his mother for her illicit love affair. It is admitted that P. W. 1 used to frequent the house as a labourer during day time and that he generally used to come in the morning. P. W. 8 admitted that P. W. 11 was present when the accused chastised her the previous night. She further stated that she had a feeling that if the accused could be removed from the house that would enable her to carry on her love affair with P. W. 11 more peacefully. THEre was ample time to decide as to the version to be given to the police. Thus the interval that elapsed between the incident and the recording of the signed statement of P. W. 1 is a factor to be taken into consideration in appreciating his evidence. Another aspect to be considered is whether the testimony of P. W. 1 requires corroboration before it is acted upon. In Mohamed sugal Esa Mamasan Rer Alalah v. THE King (A. I. R. 1946 P. C. 3) Lord Goddard in delivering the opinion of the Board said: "in England where provision has been made for the reception of unworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration unless require by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child whether sworn or unsworn, but this is a rule of prudence and not of law. "

(3.) ANOTHER circumstance relied on by the prosecution was that his affection to his sisters was so strong that he might have desired to see them dead rather than their remaining as old maids with no possibility of getting married on account of the disgrace brought on them by their mother. This is rather too far-fetched a suggestion. If he had done something to his sisters the previous night when he found that his suspicion about his mother was true, such conduct would have been more reasonable but he spent a night peacefully and attended to his normal work in the morning. Even though the prosecution may not be bound to supply a motive, the motive alleged is not convincing.